Mankin v. Dickinson

• Citation: 76 W.Va. 128,85 S.E. 74
• Decision Date: 06 April 1915
• Docket Number: (No. 2632.)
• Parties: MANKIN et al. v. DICKINSON et al.
• Court: Supreme Court of West Virginia

85 S.E. 74

76 W.Va. 128

MANKIN et al.

v.DICKINSON et al.

(No. 2632.)

Supreme Court of Appeals of West Virginia.

April 6, 1915.

(Syllabus by the Court.)

Poffenbarger, J., dissenting.

Appeal from Circuit Court, Fayette County. Suit by Cal Mankin and others against R. H. Dickinson, administrator, and others. From decree for plaintiffs, defendants Bessie Woods and others appeal. Affirmed.

Miller & Bobbitt and D. W. Taylor, all of Charleston, for appellants.

R. T. Hubbard, Jr., of Fayetteville, for appellees.

MILLER, J. The bill, styled a cross-bill, was filed by Bessie Woods, a defendant in the original suit, after final decree therein fulfilling all the purposes of the original bill, but which decree provided that nothing therein should—

"in any way prejudice the defendants, Lutie O. Woods, Bessie Woods and Sam C. Woods, or either of them as to any rights they or either of them may have to recover against the defendant, Cal Mankin, with reference to any controversy that may exist between said last mentioned parties in this cause."

The joint answer of these and other defendants to the original bill alleged a series of transactions between the plaintiff Mankin and themselves and others, out of which it was conceived certain rights and equities between them remained to be adjusted, but they were not pertinent to the issues presented by the original bill, as the court evidently concluded, and there was no prayer for relief against Mankin based thereon. Wherefore the saving in their favor in said decree.

From the decree dismissing the so called cross-bill, and denying plaintiff any relief thereon, she has appealed.

The first point made is that there was error in the selection of a special judge to try the case. The selection was by agreement purporting to be signed by counsel for all the parties pursuant to section 11, chapter 112, serial section 4558, Code 1913. Appellant does not claim that the agreement was not properly signed on her behalf, but contends that it is void because it does not appear to be signed by the guardian ad litem for some of the infant defendants, heirs of J. D. Woods, plaintiff's father. While it is true, as held in Myers v. Myers, 6 W. Va. 369, that an infant defendant can only appear and defend by guardian ad litem, we do not think that rule should be carried to the extent of denying counsel to a guardian ad litem. The contract is signed by counsel, not only for the adult heirs of J. D. Woods, including plaintiff, but also for all the other heirs of said Woods. The guardian ad litem did appear and defend by answer in proper person, and the requirements of the case referred to were thereby fully met. It is not pretended that any interests of the infants were affected by the supposed error, and appellant and her counsel were responsible for the signing of the contract on behalf of the infants. We do not think this point has any substantial merit, and it must be overruled. That a guardian ad litem may have counsel seems well settled. 22 Cyc. 665; Owens v. Gunther, 75 Ark. 37, 86 S. W. 851, 5 Ann. Cas. 130, and note.

[21 In support of the decree it is interposed by counsel for Mankin that a cross-bill can not be filed after final decree and the end of the term, and considerable argument was submitted orally and in the briefs of counsel on this point. We deem the point inconsequential. As many times decided, no matter what the pleading may call itself it will be treated in equity for what it really is, and if the court may rightfully do so it will be treated as an original bill. Martin v. Smith, 25 W. Va. 579; Pethtel v. McCullough, 49 W. Va. 520, 39 S. E. 199; Silman v. Stump, 47 W. Va. 641, 35 S. E. 833; Jones v. Crim & Peck, 66 W. Va. 301, 303, 66 S. E. 367; McLanahan v. Mills, 73 W. Va. 246, 80 S. E. 351.

The first ground alleged for relief against Mankin is, that the deed made by plaintiff and J. D. Woods and Lutie O. Woods, her father and mother, to Mankin, March 25, 1907, whereby, in consideration of one dollar cash in hand paid, the grantors conveyed to Mankin a certain house and lot in the town of Oak Hill, Fayette County, and the contract executed between Mankin and wife and Bessie Woods contemporaneously with the making and delivery of said deed, and whereby Mankin and wife, in consideration of one dollar in hand paid, thereby gave and granted to Bessie Woods the exclusive right to re-purchase said property, in consideration of fourteen hundred dollars, and the actual costs of any additional improvements, said amount to be paid cash in hand, the contract to be void after twelve months from date, and whereby on so electing, and complying with the terms of the contract, Mankin and wife covenanted and agreed to make and deliver to her a deed of general warranty for said lot, constituted together a mortgage by Bessie Woods and others to Mankin, and not an absolute deed of conveyance, for the purpose of securing repayment to him of certain debts and liens existing against the property, estimated at nine hundred dollars, and five hundred dollars represented by the note of Mankin to Bessie Woods executed on the same day.

The general proposition contended for by counsel is supported by the numerous decisions cited, that where land is conveyed by debtor to creditor, to secure the repayment of a loan of money, and the borrower makes a deed absolute to the lender, but with a collateral contract or agreement for the re-purchase of the property, the transaction constitutes a mortgage, and not an absolute sale. Davis v. Demming, 12 W. Va. 246; Thacker v. Morris, 52 W. Va. 221, 43 S. E. 141, 94 Am. St. Rep. 928; Sadler v. Taylor, 49 W. Va. 104, 38 S. E. 583; Lawrence v. Du Bois, 16 W. Va. 443; Hoffman v. Ryan, 21 W. Va. 416; Kyger v. Depue, 6 W. Va. 288; Klinck v. Price, 4 W. Va. 4, 6 Am. Rept 268; Hursey v. Hursey, 56 W. Va. 148, 49 S. E. 367; Liskey v. Snyder, 56 W. Va. 610, 49 S. E. 515.

But do the pleadings and proofs bring this case within the rule of those decisions? Ac-cording to pleadings and proofs, the agreement, not evidenced by any writing between the parties, was that Bessie Woods, in whom the legal title was invested, should sell and convey the property to Mankin, and assign to him a certain collateral contract relating to one of the liens thereon, and that in consideration thereof Mankin should assume and pay the debts and liens against the property, estimated by both parties, after examining the records, to be about nine hundred dollars, and in addition pay the five hundred dollars; and should also execute an option contract to reconvey the property to Bessie Woods within twelve months in consideration of fourteen hundred dollars to be paid him in cash. The contract so executed between the parties was not one for a loan of money. The proposition to Mankin was to sell him the property outright, not to borrow money. Evidently he was attracted to the proposition because of the opportunity presented to make a profit. The collateral contract assigned Mankin was one between J. D. Woods and certain of the other heirs of S. B. Woods, his father, whereby the latter in consideration of the agreement of the former to keep his mother, agreed to release to him their interest in a deed of trust debt on the property in favor of their father, the late Samuel B. Woods, and to procure all the other heirs to also release their interests, and thereby relieve the property of that lien, which at the time Mankin purchased it, still existed, and was one of the debts and liens which with the aid of said collateral contract Mankin was to pay off and release.

That these papers were not intended by the parties to constitute a mortgage is established beyond controversy by the subsequent transactions between them. It is alleged and proven that within four months after the date thereof Bessie Woods elected to re-purchase the property, and did so, and that in compliance with the terms of the option contract, Mankin and wife, as directed by her, executed and delivered to Sam C. Woods, her brother, a deed of general warranty for the property, in consideration of fourteen hundred dollars, cash in hand paid, by surrender, through the bank where the deed was deposited by Mankin, of Mankin's note for five hundred dollars and payment to him of nine hundred dollars in money. Mankin's deed exhibited with the bill bears date July 16, 1907.

Moreover, it is further shown that at the time of the transactions just referred to, and as a means of raising the money to re-purchase the property from Mankin, Bessie Woods and her brother and mother borrowed from one Blake the nine hundred dollars to make the Cash payment to Mankin, and secured Blake by a deed of trust on the same property. With this transaction Mankin had nothing to do. By the making and delivery of his deed to Sam C. Woods, as stated, and accepting the cash payment and surrender of his note, Mankin became wholly disconnected from the property, except that it appears he had not fully performed his contract to pay off and procure a release of the old trust debt in favor of the heirs of Samuel B. Woods, and of which we will speak later.

But as the bill alleges and the proof shows, when the money borrowed from Blake fell due and was not paid and he was about to sell the property under his deed of trust, these same people, the Woods heirs, applied to the Merchants & Miners Bank, of Oak Hill, for another loan of nine hundred dollars, which was declined, and then it was that they procured Mankin for their accommodation to endorse a note for that amount, and gave a new trust deed to secure him as endorser, both note and deed of trust then being accepted by the bank as security for the new loan. With the money thus raised these people paid off the Blake debt, and it is alleged and proven that Mankin's connection with this transaction was that of an accommodation endorser only. The oral agreement at the time of the loan was that payments were to be made on the note at the rate...